For the key players in the Senate impeachment trial of Donald J. Trump, their actions during these few consequential days will constitute entire paragraphs in their obituaries. Already, House impeachment manager Adam Schiff has elevated himself as a dogged pursuer of justice. Already, White House Counsel Pat Cipollone—who falsely declared, “President Trump is a man of his word”—has lowered himself as an agent of deceit.
The legacy of John Roberts, chief justice of the United States, is being rewritten on the fly as well, just days shy of his 65th birthday. Roberts fancies himself an institutionalist, a mere “umpire,” there to fairly administer the rules of the game. His self-styled reputation, however, has never matched his actual judicial record. Roberts is a Republican who does everything he can to bend the law to the Republican agenda. A recent book by Mark Joseph Stern looking at how Roberts navigated the last Supreme Court term, which is also the first term in which Roberts enjoyed an unflinching Republican majority, bears that out.
But unlike on the Supreme Court, where Roberts and the other eight justices wield unchallengeable power over literal life and death, Roberts wields almost no power in the Senate. His role as presiding officer over this trial is largely ceremonial. He cannot ask questions; he cannot demand evidence; he has none of the power traditionally accorded to trial or appellate judges. All Roberts is empowered to do is enforce the rules as laid out by the Senate majority, and even that power could be subject to a Senate vote to overrule him.
Finally, Roberts is the mere “umpire” he’s always claimed to be. All he can do is enforce the rules as written.
So far, Roberts hasn’t even done that.
If there is one thing that an institutionalist like Roberts allegedly cares about, it’s treating the institutions of government with the proper respect and decorum. In this case, the “decorum guidelines for senate trial” were put out by McConnell, but unlike the other rules McConnell laid out governing witnesses and documents, these rules were agreed to by the Senate minority. The decorum rules require senators to be present for the entirety of the trial. They require the senators to be silent. They say that “reading materials should be confined to only those readings which pertain to the matter before the Senate.”
At the start of each day, the sergeant-at-arms of the Congress reminds the senators that they could be arrested for leaving the trial.
And yet: Reporters on the ground have caught multiple examples of senators violating these rules. Senators are talking to each other. They’re making liberal use of bathroom breaks. Republicans clapped for Pat Cipollone. Rand Paul was spied doing a crossword puzzle and making paper airplanes. Marsha Blackburn did one of her Fox News interviews while the House managers were presenting their evidence.
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The rules and expectations imposed upon the senators are not extraordinary. Don’t believe me? Show up for jury duty at any court in the entire country. Try getting up and walking out during the prosecution’s presentation of their case. Try talking with your fellow jurors while the advocates are speaking. Try stepping outside to take a call from work. Sit there making paper airplanes like a damn child during testimony. See how fast the judge admonishes you. It’s not too much to ask United States senators to maintain the same level of focus during the impeachment of a president as any US citizen would be expected to maintain during a hearing over who caused the pothole on Main Street.
Roberts’s role, his only real role, is to maintain a level of decorum and gravitas in keeping with the seriousness of the moment. The only time, thus far, Roberts has bothered to editorialize was at the end of the marathon session on the first night of the impeachment trial. He used his moral authority, which again is pretty much the only authority he has during these proceedings, to remind the advocates for both sides “in equal terms” to treat the so-called “greatest deliberative body in the world” with the proper respect.
Did he mean it? Did he actually intend to demand “decorum”? Or was he just trying to curry favor with the Republican majority?
The latter seems more likely. It was revealed Thursday that, before his statement, Roberts received a note from Republican Senator Susan Collins. Collins complained to Roberts after House manager Jerrold Nadler suggested that the Senate was engaging in a “cover-up” if it refused to call witnesses.
Is that how it’s going to work? Republican lawyers lie, and Roberts says nothing. Republicans leave the hearing room to do partisan television interviews, and Roberts says nothing. But Susan Collins gets her feelings hurt and Roberts takes judicial notice? Is there a “push to talk” button on his robes that only Republicans can see?
If you’re not going to admonish the Senate for violating its own rules of decorum, then admonishing the advocates is cheap. It’s just a bit of costless brown-nosing that makes Roberts look like he’s trying to curry favor with the Senate majority.
During the second day of the trial, House manager Jason Crow drew attention to the fact that Roberts was asleep at the wheel, as deferentially and indirectly as he could. During his presentation, he addressed the chief justice and asked if, perhaps, the Senate needed a break. The only camera allowed in the Senate chamber is fixed on the speakers at the podium; we can’t really see the gallery of senators. But Crow can. He can see if senators are in their seats. He can see if they are talking to each other. So can Roberts, if his eyes are actually open.
Maybe Crow should have stopped in the middle of his presentation and sent Roberts a note: “R U Alive? Y/N.”
I believe Crow asked Roberts if the Senate needed a break to try to wake up Roberts and get him to enforce the rules. In response, Roberts sheepishly asked Mitch McConnell if the Senate needed a break and McConnell said they did not. His point made, Crow continued with his presentation.
Roberts’s refusal to call the Senate to attention matters. While most people (or Democrats, in any case) think that the vote is “rigged” and that Republicans are going to vote to acquit no matter what—Rand Paul’s acting like Bart Simpson is unlikely to change the outcome—allowing the Senate to treat this entire process as a joke plays right into Republican hands. The Republicans don’t want the public to think impeachment is a “big deal.” They don’t want people to listen to the evidence against Trump. They don’t want the public’s attention to be focused on the facts. Republicans want to play politics. They want to make speeches. For Republicans, appearing on Fox News to support Trump is far more important to them than sitting in a chamber listening to the damning case against Trump.
If Roberts lets them do that, he’s helping Republicans. If the only time he speaks is to make false equivalencies about “both sides,” he’s helping Republicans. Any time Roberts allows Republicans to make this process seem unserious or partisan or like a big joke, he’s helping Republicans.
People know that Roberts doesn’t have a lot of power here. I don’t think anybody expects Roberts to save the republic, or even much care about what Senate Republicans are doing to it. But we expect Roberts to call the game fairly. We expect him to use his limited authority to enforce the rules, not ignore the rules if Republicans don’t feel like following them.
Roberts might physically sit “above” this process, but history will remember his role in it nonetheless. He’s not off to a great start.
